Sunday, October 30, 2011

Shivani Bhatnagar Murder Case: HC Judgement - Reward for Crime

The gruesome murder of Shivani Bhatnagar in January 1999 dominated the media for quite some time, initially because of the cold-blooded nature of the murder and later due to involvement of a high-ranking police officer in the crime. After tortuously long investigations by the Delhi police and subsequent trial, a Delhi court sentenced RK Sharma, a senior IPS officer of Haryana cadre (IG – Prisons), and his accomplices to life imprisonment for the murder. This was in March 2008. Now, a two-judge bench of the Delhi High Court comprising Justices BD Ahmad and Manmohan Singh found no merit in the trial court’s judgement and, reversing the lower court’s judgement, has acquitted RK Sharma and two others. Interestingly, the bench had reserved its judgement on December 21, 2010 and it took the honourable judges more than 10 ½ months to reveal their judgement on 12 Oct 2011 granting freedom to the three ‘innocent lives’, who, the bench viewed, were wrongly punished by the trial court! More interestingly, the bench upheld the conviction of RK Sharma’s third accomplice, Pradeep Sharma who had actually executed the murder plan. What baffles human prudence is that grounds that were no evidence for RK Sharma’s culpability became strong enough evidence to let Pradeep Sharma continue in jail for life.

Exonerating RK Sharma and two others, the judges have raised some questions, “"Did he (Pradeep) act alone? Did he act at the behest of RK Sharma or did he act at the instance of someone else? These are questions we can't answer on the basis of the material before us.” Death in the absence of motive would be mere accident or mishap with no culpability on a person who could be present at the scene of occurrence for a number of reasons. Even fingerprints not corroborated by motive could as well suggest a timely benign help and effort to save the life of the deceased. The reluctance of the honourable judges in ascribing motive for the killing bores many holes and raises pertinent questions, which the judges have themselves raised in their strange judgement. Intriguingly, they have left these questions unanswered for unexplained reasons. If RK Sharma is removed from the entire episode, Pradeep Sharma would not – in all probability – have ever known or met Shivani Bhatnagar and, therefore, would not appear as a killer in the episode. But the judgement makes it appear as if the killer jumped out of Aladdin’s lamp in Shivani’s house just to commit the crime and go. The judgement confounds the confusion about Pradeep Sharma killing Shivani without having any personal reasons that could drive him to commit the crime. That he killed her, they are fully convinced; why, they do not know! Worse, they do not attempt to find out either.

Thanks to his training and professional experience as a senior IPS officer, RK Sharma’s expertise in criminology, procedures and mechanics of investigations, attendant legal aspects and evidence management et al place him at an enviably advantageous position to plan and organise crime more ably and skilfully than the professional criminals bereft of such prowess, experience, resources and requisite influence of office. The quality and size of his influence could be surmised from the fact that he had done tenures in the CBI, as an officer on special duty (OSD) at the Prime Minister Office (PMO), vigilance officer for Air India and a tenure with the Interpol (France) – a service record that could earn him enough clout to vitiate the investigations and, who knows, influence some pliable judges too.

The judgement has evoked strong resentment and criticism in the media and public besides a number of conscientious lawyers and activists. While there are many in the legal profession who condemn the judgement, some like Ashok Arora, a well known Supreme Court lawyer and social activist, have stepped up their tirade against corruption in the Judiciary. Not able to digest the prejudice in the judgement, an irate Ashok Arora has questioned the integrity of one of the judges. While norms of civility must be followed even in criticising, the threat of contempt proceedings forestalls all kinds of debate and criticism of happenings inside the courtrooms. Their Lordships would only exalt their own prestige and dignity by rising above vindictive attitudes and displaying higher levels of tolerance and magnanimity before issuing contempt notices. That vendetta mostly drives contempt cases is clear from the fact that these cases are taken up faster and decided quickest while more serious cases anguish for years and decades. Their Lordships are so addressed because a divine conduct where the conscience and mind are in harmony is expected from them when they proclaim a judgement. Ironically, in the Shivani case, sobs of a suppressed conscience of the judge can be felt from the judgement itself when it says, "Judges, like other human beings, have suspicions. But judges, unlike others who are free to arrive at their own conclusions, cannot and do not convict on the basis of mere suspicion." (Read ‘inferences’ instead of ‘suspicions’). The inner conflict gives away enough for prudence to judge the judge.

For reasons unknown, the bench has preferred to ignore some vital aspects of the case. If RK Sharma was innocent, why did he did he behave like a criminal by going in the hiding? Why did he – IG (Prisons) of Haryana - continue to abscond as a deserter for over two years until confronted with the court deciding to declare him a ‘proclaimed offender’! When Shivani was in London for two months, he made 90 ISD calls to her from Mumbai; she made 176 calls to him from London. It takes simple logic, not rocket science, to reasonably deduce whether such deluge of passionate communications reinforce or refute the nature and intensity of their relationship? The fact that such an extra marital relationship carried risks that could destroy career, personal reputation and family life of RK Sharma is obvious. Being in such a situation, it is also obvious that he could be easily blackmailed, a logical inference that is also corroborated by Shivani’s friend Sejal and sister Sewanti in their statements. A ‘gentleman’ in RK Sharma’s position would naturally fear serious damage to his career, family life and social reputation if exposed as a debauch. RK Sharma found himself in a trap. Luckily, his profession and position afforded the wherewithal with which to destroy this trap and break free.

There is a huge class difference between RK Sharma and the other accused in the case. His proximity to urchins like these from humble backgrounds and he treating them at places like Hotel Ashok is an unusual and odd behaviour – an aberration from his known life style and relationships, which raises curious questions. And, what’s more significant, RK Sharma’s intimacy, communication and meetings with them became more intense and frequent in days just prior to the murder. Curiously enough, all intimacy, communication and meetings between RK Sharma and his accomplices suddenly changed in pattern soon after the murder. Their movement, meetings and communicating pattern before and after Shivani’s murder – if prudently concatenated, lead to irrefutable conclusion: their conspiracy for the crime, preparation, commission and efforts to destroy the evidence as had been rightly observed by the Sessions Court. It is the logical conclusion – not suspicions – that is product of factual occurrences and actions of specific individuals, which unambiguously point to the mastermind in the crime. “It is settled law by the Supreme Court with regard to motive, conspiracy and Indian Evidence Act, Sections 8 (regarding conduct of accused), 10 (act of any accused to be relevant against all) and 27 (disclosure leading to recovery of fact), which were totally ignored ….”, says Ashok Arora.

There is no doubt that there are many honourable judges with impeccable record of honesty and integrity whom wealth cannot lure and threats cannot scare, yet judicial probity is on the decline. Earlier, cases like Jessica Lall and Nitish Katara had exposed the influence of power – money, muscle and position – and susceptibility of our judicial system to such forces. If it were not for the pressure exerted by the public and media, the high profile criminals would be exonerated and let free to hunt and wipe out more innocent human lives. What will be more profane and contemptuous in judicial dispensation than a court awarding the highest quantum of punishment and another acquitting the accused altogether? The High Court judgement is not at variance with that of the Sessions Court; it turns the latter upside down and, by implication, rewards persons punished severely by the Sessions Court. The contrast between the two judgements being as stark as this, it is plain and obvious that one of them is highly improper and unjust – a dangerous lacuna in the judicial dispensation will one day send the innocent to the gallows and set the dangerous criminals free just as simply. Therefore, after the Supreme Court’s verdict on the appeal, the conduct of the erring judge must be made to face speedy prosecution himself for being unjust, which is tantamount to the judge abetting and being an accomplice in the crime.

There has been much debate about judicial reforms but little has been done despite repeated suggestions and recommendations from various institutions and organisations including Law Commission and Administrative Reforms Commission. Now under pressure from a nation-wide anti-corruption tirade, the government is contemplating to introduce, among others, the Judges Accountability Bill, which one hopes, will salvage the system from going adrift.

Sunday, October 23, 2011

Unholy Coalitions and Bad Governance: India faces a cruel double whammy

Corruption has taken time to grow in India. It has graduated from a slow pace, covert and cautious activity in the Nehru era to a fast, audacious and daring occupation of politicians and bureaucrats today as can be seen from the size and frequency of scams. Party funds of all political parties started swallowing cash ‘donations’ from public and corporate houses which encouraged generation of black money and patronised the affluent donors. Numerous inquiries and lingering court cases have gone on for decades tiring the witnesses and the public to such an extent that the delays virtually turn out protective for the accused while their crimes gradually fade away into oblivion. As if by the legal processes so designed, no political party or senior political leader has yet been convicted and finally punished (exhausting all appellate levels) which could be an example to deter others. The sluggish pace of court cases and moderated enquiries gave comfort and much needed security to the culprits who have insidiously formed their pressure groups within the political parties. Progressively, party ideologies became out-dated giving way to an era of politics of mutual comfort and gain. Small wonder that we find the tone and tenor of party spokespersons quickly shifting from their pre-poll accusatory stance against their declared foes, to an immediate friendly mode, keeping in tune with the post-poll trends emerging from the counting.

The anti-defection law has curbed retail horse-trading to an extent but in recent times we have seen political parties, which fought elections as avowed enemies coming together for form alliance with no qualms about their pre-election espousal of promises in their manifestoes. Governments formed on the basis of shared interests of parties, which in today’s context are virtual family domains of dynastic lords who call the shorts. Shamefully, it is sad chapter in the history of world’s largest democracy that weak governments have openly traded parties and groups to win a vote of confidence in the Parliament. First, the Narsimha Rao government was saved with support bought from the Jharkhand Mukti Morcha. Again, in July 2008 when the Left Front withdrew their support from the UPA 1 over the Indo-US Nuclear Cooperation Treaty and the Manmohan Singh government, reduced to minority, was confronted with a confidence motion, the stench of political corruption rose again. Wads of currency notes, allegedly paid to MPs to buy their vote to save the sinking Manmohan Singh Government, were waved and the drama of active horse-trading was caught in a sting operation. While the ‘cash for votes’ is still being ‘investigated’, the public is largely convinced about the existence of murk and muck in our political actions at the top.

The culture of political convenience and opportunistic functioning at the highest levels is dangerous for the country’s security. On critical national issues like corruption, security, good governance, health care and poverty eradication it would be great if the major political parties eschew narcissistic and vindictive politics resolving to sincerely act together at least to safeguard the vital national interests. Such an approach can perhaps help in restoring some semblance of political integrity at the national scene and bring in systemic change in the decaying state organs and callous departments. Some of the aspects that need immediate focus are :-

1. Political Blackmail: Everyone knows how confidence motions have been won through dubious machinations between parties and individual MPs and MLAs. Modern day Chanakyas have devised ways and means to bend and twist Democracy their party or alliance. As we saw in the in the questionable confidence vote for the Manmohan Singh government, Mulayam Singh’s Samajwadi Party jumped in straight from the Opposition with its 22 MPs to save the Manmohan Singh Government despite his vociferously voiced divergence with the policies of the ruling combine. It is also fresh in public memory how ruling coalitions are often held to ransom by tiny parties and even independent MPs/MLAs who find and create opportunities to coerce and blackmail the ruling alliance primarily to achieve their own narrow aims. The arrogance and audacity of the erstwhile DMK ministers mounted so high that they saw nothing odd in publicly admitting that they received their directions from Karunanidhi and not from Manmohan Singh! How are such coalitions different from gangs of criminals looting and sharing the booty? Thanks to our coalition politics, Madhu Koda, an independent MLA, went on to become Chief Minister of Jharkhand. Though now in jail for having amassed booty of over Rs 4000 crore through mining mafia, he is now an MP in the Lok Sabha. His ambitions and possibilities in present day Indian politics are not hard to speculate.

2. Emergence of Dangerous Trends of Populism: In a weird move to placate particular segments in the society at the cost of higher national interests, the Tamil Nadu Legislative Assembly has passed a resolution to save lives of three convicts sentenced to death for assassinating Rajiv Gandhi. They have exercised and exhausted all their legal rights, appeals and mercy petitions, which have been duly heard and finally rejected by the Supreme Court and the President of India. Now, inspired by this populist move of the Tamil Nadu Legislative Assembly, there is a similar resolution mooted in the J&K Assembly to save Afzal Guru, convicted and sentenced to death for attack on India’s Parliament. These moves to save the worst of the criminals and terrorists are also echoing in Punjab and, if allowed to prevail, will turn the worst of the criminals into heroes to inspire their ilk to tread the same path with greater assurance. With the advent of such politics, do we need Pakistan or China to destroy India? The enemy within is more potent, cunning and on its way to invincibility as well! What is mind-boggling is that it is the victim – the unsuspecting gullible masses – who, in the name of care and welfare, are being used by the perpetrators to intrinsically destroy themselves. This sinister trend of populism too is being pedalled hard in the name of Democracy!

3. Systemic Degeneration: Corruption has had a cascading effect on all organs of State resulting in a systemic degeneration of institutions and departments. If not based on Rule of Law, Democracy gradually shrinks into a self-serving Oligarchy, which in turn converts resources and power of the State to instruments serving vested interests of the ruling group. Look how the State is being emasculated by this approach. CBI, the so-called autonomous investigative agency is, as everyone knows, not so autonomous. Like hounds in sheath, the CBI sleuths can be set on trails or shooed away depending upon the convenience of the Government (DoPT). People have frequently seen how quickly the CBI sleuths also adapt to the changed equations between the ruling coalition and their erstwhile targets. In most cases their investigations are inconclusive and kept alive or in suspended animation for need based subsequent revival. A pattern of CBI behaviour has been established and it is becoming simpler now to predict their course and object of investigations. The Central Vigilance Commission (CVC) has not done enough to curb corruption at the Centre. Appointment of tainted officers to head such an organisation further eroded its credibility. Institutions that should be people oriented are top-oriented serving personal interests of a chosen few at the cost of those who wait and suffer. What is even more worrisome is that the politico-bureaucratic nexus has not shied away from destroying the cohesion among India’s Armed Forces. Recommendations of the Kargil Review Committee emphasised on the need to have a single point military advice system to help and advise the Government on matters involving national defence and security. This, the Committee reiterated, necessitated early institutionalisation of ‘Chief of Defence Staff’ as a fountainhead of integrated and cohesive military vision as is working in countries like France, UK and Australia among others. The nexus, however, has not only slept over these vital recommendations for over a decade now but has pushed down the military from their entitled position in the National Warrant of Precedence. Take away the sheen from professions like military and you will have destroyed their morale and pride so completely that they will blunt their fighting edge. And see how its manifests – we have juniors going berserk killing themselves or their colleagues in the field; and generals getting increasingly involved in cases of corruption.

It is pathetic that Prime Minister Manmohan Singh, the most qualified among the world’s prime ministers, has expressed his inability to control terrorism, inflation and corruption ‘because of compulsions of a coalition government’. Is that how we had expected India’s Prime Minister to lead India? A government that cannot find answers to questions as basic as these in the 21st Century has no moral right to hang on to power:-

• Public safety and security is the very basic responsibility of the State. Why then have the Police withdrawn from peoples’ security leaving them to fend for themselves by hiring private security guards while the police protect only politicians and their officers?

• Every vehicle owner pays advance road tax in lump-sum. Why can’t we have all roads as good as the privately constructed and managed Express ways?

• Every citizen has a right to pure drinking water. Why is contaminated water, unfit for human consumption supplied through water supply lines to homes?

• Why are residents living in government-approved colonies not getting uninterrupted power supply? Why should they pay for back-up power generation from privately run generators and inverters?

• Why are Government hospitals, schools and institutions not performing with the same efficiency as the private ones despite being well equipped and profusely funded by the public money?

• Why students should be required to seek ‘coaching’ from hoards of Coaching Shops by paying hefty sums to prepare for IITs etc? Why don’t schools impart quality education that should enable students to avail of all career opportunities?

India is passing through a curious phase faced with a mix of challenges and opportunities. There is matching potential available too. We can transform it to a global power if only we can overcome the coalition blackmailing and self-serving politicking within the government. The tendency of ministers treating their ministries and departments as their fiefdoms must be curbed and accountability introduced to infuse positive energy in the callous administration.

Need for the Army to Speak up

The good news is that tourists are pouring in Kashmir and Dal Lake, Pahalgam, Gulmarg and other scenic places are once again humming with fun and charm. The bad one is the hue and cry on the alleged ‘discovery of 2500 unmarked graves in north Kashmir’ implicating the Army for it and raising questions on its role in combating terrorism in the Valley. Mute response from the government and the Army has only lent credibility to these allegations. Adverse commentaries by organisations like Amnesty International and indigenous rights activists have also come as a shot in the arm for the decimated anti-India lobby and political poachers of peace in Kashmir. Army’s stance of avoiding questions by issuing defensive, cryptic one-line denials of allegations have raised more suspicions than allaying baseless fears and mounting rumours.

Public curiosity demands answers to questions like, “Can the Indian Army really do this?” “Are our soldiers so cruel and inhuman?” “Is there no difference between the Indian Army and Gaddaffi’s?” Barring odd aberrations, the record of the Indian Army has been laudatory not only at home but also in foreign territories captured by it and where it held its sway in war or post-operational occupation like Bangladesh, Pakistan and the UN missions in Africa.

Having served as an Infantry officer in the Army and the NSG, I have planned and conducted numerous operations at different occasions in J&K, Punjab, North East and special operations elsewhere. Fighting terrorists is a very complex operation because, no matter how much caution and care you exercise, the probability of collateral damage cannot be ruled out. This probability is further heightened when terrorists are holed up in densely populated built up areas like towns and villages. The situation becomes even worse when the terrorists start shooting and throwing grenades with no regard to lives – military or civilian, their aim being to create chaos and confusion through which they could escape. Many gallant soldiers have sacrificed their lives fighting this menace primarily because they moved with utmost restraint risking themselves for the sake of the innocent local population, even as the terrorists sprayed the area with bullets and grenades. Despite abundant caution by the fighting troops, innocent civilians often get caught in this frenzy of fire. There have also been occasions when innocent civilians, even children and women, are held hostage and used by the terrorists to barter or cover their escape. It cannot be denied that innocent civilian lives have been often lost in such operations not only in the Kashmir Valley but in all terrorist infested states in the country. Therefore, the onus of such deaths should be on the terrorists, not the Army.

Let’s also face it that there have also been aberrations where some extra ambitious sub-unit or unit commanders have tried to paint accidental civilian deaths as ‘terrorists killed in encounter’ to protect the wrong doer and earn laurels for ‘a well conducted operation’. Thankfully, whenever such episodes have come to light the Indian Army has moved with terrific swiftness to enquire and punish the wrong doers. Officers and jawans indicted for serious offences have been dismissed from service and handed out long jail sentences. It might surprise many to know that punishments awarded by Courts Martial have been so stern that according to one researcher nearly more than 93 per cent of the punishments awarded by Courts Martial are mitigated and 40% acquitted by the appellate courts. And trials by Court Martial do not drag for years like the cases going on for decades in our civil judiciary. Army officers involved in the Tehalka scandal were sacked and punished even before formal enquiries commenced against the politicians and bureaucrats involved in the same episode. People also know what happened to the politicians and bureaucrats indicted for the same misdemeanour – sweet nothing! They were all back to business as usual until prevented by death or incapacitating diseases like Alzheimer. Let also be widely known that stern actions have already been taken against the serving army officers indicted for their role in scams like Adarsh Society in Mumbai and Sukhna land deal – some have been demoted, sacked and punished summarily; some have been court-martialled while trials of the remaining few are in their final stages. What has happened to their civilian comrades-in-crime – ministers, bureaucrats and also those ex-military veterans now beyond reach of the Courts Martial? They are playing ball which keeps bouncing between this court and that. It is sad that the overflowing corruption in our bureaucracy and political life has spilled over the military and smeared its image of pure professionalism, honesty, high ethics, discipline and self-less dedication to national safety, security and wellbeing. Candid analysis of the drift in character qualities at the top will surely suggest an urgent need for a comprehensive, sincere and ruthless self-cleansing operation to redeem the lustrous glow of the dimming top brass. The Army will delay this exercise at its own peril.

Unfortunately the civilian population in India is not informed enough about the restraints, risks and operational necessities through which troops function. Local people do have a stake and responsibility in what happens in their vicinity and, therefore, they also have a right to know how the Army is delivering them from chaos and terror to peace, freedom and prosperity. It is sad that not enough is known about the Army even in the government echelons. Our political masters and bureaucrats who look towards the Army whenever in crisis do not have any idea about its capabilities and limitations – features that every citizen must know.

The age-old tradition of keeping the media and taxpayers insulated from all military matters in the name of security is now coming in direct conflict with the mood of the masses. We are living in the Information Age today where transparency, connectivity and information sharing are a rule rather than exception. Spies and enemy agents no longer have to sneak into military Ops Rooms to steal traces and maps of our defensive layout. A click at Google Earth provides more detailed and accurate photographs of these defence works and terrain than the Top Secret war books and layouts locked up in strong room cupboards of the general staff branch. Comprehensive details including photographs, blueprints and technical data of our classified weapon systems and equipment are also a click away on the Internet. Notwithstanding the dissatisfaction of the Armed Forces about the inadequate remuneration and long pending modernisation programmes, the defence budget is a huge chunk of taxpayers’ money. They have a right to know how their soldiers function, what they have, what they need et al. The Armed Forces stand to benefit more from the principle of transparency because their genuine needs will become a public concern too.

Thanks to the CAG reports and RTI activism, many wrongs in the government functioning have been exposed leading to an unprecedented number of ministers, MPs, bureaucrats and Corporate big-guns going to jail on charges of corruption. No doubt, transparency in military context will have to have a limit beyond which it cannot open to public keeping regard to highly sensitive matters of national security and operational imperatives. Yet, the blanket ban on sharing even routine military information with the people, has only harmed the Army in many ways including lowering its image and raising doubts in public mind about the fairness in its conduct despite sacrificing gallant soldiers in self-less dedication to duty. Prompt and timely press briefings about successes and failures, if any, including misconduct by combatants – officers or jawans – and corrective actions contemplated or taken, would have stifled rumours that have thrived on military silence even as media celebrated by scandalising ‘military crimes’. Imagine the positive effect on the people if the Army had shared the progress of inquiries and Court Martial proceedings in respect of those found guilty of offences in Kashmir Valley or, for that matter, anywhere else. In today’s exposed world, people neither expect nor believe that soldiers living and fighting terrorism under severe adversities will not commit mistakes, even crime, howsoever rare it might be. The ‘Army-does-no-wrong’ theory advanced as a line of defence is no more tenable. Persistent denials in the face of accusations have only damaged Army’s credibility whereas candid acceptance of such oddities would only reinforce people’s faith in the Army’s fairness.

While the aam Kashmiri is enthusiastically looking up to new vistas of hope and fresh opportunities in the dawn of normalcy now, the defeated alienists and power hungry politicians will do anything to revive anarchy by provoking the masses against the Indian Army in the wake of the so-called discovery of 2500 unmarked graves. In the absence of plausible clarifications from the Army, rights activists within and outside the country have found it easier to lend their voice to a ‘cause’ in the Kashmir Valley. What if the Indian Army Chief, Gen VK Singh had offered – better still, demanded – an impartial probe into the discovery of unmarked graves with an unambiguous assurance that the military personnel found guilty shall be dealt with severely and swiftly. Hypothesising a worst case scenario in which such a Probe finds some, say 10, 20 or 50 of these corpses being those of the innocent villagers picked up and wrongly done to death by the Army, will such a finding itself not demolish the outrageously provocative accusation that implies as if the Army had indulged in mass killings? Carrying the hypothesis a little further and assuming Gen VK Singh’s magnanimity to apologise for the odd military wrongs, the Army Chief orders enquiry to be followed up by general court martial in respect of those found involved in the crime, howsoever rare. There will be three powerfully positive fall outs of such a bold action: one, the anti-Army propaganda will lose steam and people’s faith in Army’s fairness will be largely restored; two, the wrong doers within the Army will get the message loud and clear to steadfastly adhere to the laid down ethics in operations; three, the reputation of the Army and its Chief will be greatly enhanced. Also, the Chief of the world’s third largest Army has much bigger things to fight for and remembered by than mere personal battles seeking reconciliation between two conflicting dates of birth!

Why Armed Forces Special Powers Act? - A Soldier's Perspective

Brigadier V Mahalingam (Retired)
Based on the recommendations of the Justice Jeevan Reddy Committee and the Second Administrative Reform Commission, the Government attempted to replace the Armed Forces Special Powers Act (AFSPA) with a law which it felt would be more humane than the existing one. With the Army and the Ministry of Defence opposing the move vehemently, the proposal was put on cold storage only to be revived after a statement by the Chief Minister of J & K to the effect that the Act will be revoked from certain parts of the State.

Withdrawing the AFSPA from some parts of the State presupposes that the security situation in the areas so selected is manageable by the State with its own law enforcement resources. If that be so, even with the AFSPA on, what prevents the State Government from ensuring that the army is not deployed or requisitioned in these areas is a big mystery. By adopting such a resolve, it may well be possible to test the efficacy of the Chief Minister’s proposal before a final decision is taken.

The Chief Minister is well within his right to demand the annulment of AFSPA from which ever part of the State as deemed fit by him provided the Army is not called upon to act or be requisitioned in these areas. The Government needs to understand that making a soldier act in an insurgency situation without the AFSPA will be considered an act of betrayal besides adversely affecting the morale of the services as a whole. Needless to say, the political hierarchy ought to bear in mind that national security cannot be bartered for petty political gains.

The subject matter one hopes will be discussed in the Parliament and the country will adopt a deliberate and a well calculated measure. The Parliament has the obligation to make certain that its citizens have a safe and a secure environment to live in. While employing the Armed Forces in an insurgency situation, the moral responsibility of the Parliament is no less in ensuring that the Armed Forces are not pushed into action with all the operational and legal impediments intact. To that end AFSPA is a suitable legal framework created by the Parliament. It now intends to repel or replace it with a new law under pressure from the state governments, human right activities and political parties. In this issue, the ground realities confronting a soldier are compelling and needs precedence over intellectual opinion. The Parliament therefore needs to understand the practicalities of military operations and evaluate the implications without any vote bank or other partisan considerations.

Legal Powers
Armed Forces need the legal authority to conduct operations involving entry, search of premises and arrest of individuals without warrants. Authorization to use force including opening effective fire, seize weapons, military hardware and explosives, destroy armed camps and military stocks held by militants are a must. They need legal safeguards against motivated accusations and long winded legal action. Without this authority, the Armed Forces will be acting exactly like the Police which obviously are not the intention. They are not meant to perform police duties or adopt their methodology.

The Milieu
When the army is requisitioned for counter insurgency operations, there is a total intelligence vacuum. The locals are not prepared to cooperate or provide information for fear of the gun or ideological reasons. The enemy that the Army is chasing is an invisible one and has no addresses or identity to locate or arrest from. The militants are constantly on the move from one village to the other and the locals are forcibly made to provide shelter and feed them by over ground workers. Some are foreign mercenaries. Under these circumstances, what search or arrest warrant can be obtained and against whom?

The presence of the Army restricts the movements and activities of the militants and they want the Army to go. A smear campaign against the Army, they hope, will have them returned to their barracks. The militants and the locals identify the army with the government and are hell bent on discrediting them as a part of their political campaign to claim legitimacy for their criminal activities.

There are no courts or police stations in the remote areas where operations are conducted. Access to these establishments will involve movement through militant infested areas which may have been mined or an ambush kept in waiting. Accordingly, road opening and convoy protection will have to be undertaken before any such movement, a massive effort indeed. Under such circumstances, where does one obtain an arrest warrant or a search warrant from and for whom or which premises? Can these be done without jeopardizing the lives of the soldiers?

Obtaining a search or an arrest warrant will involve processing or at least the papers being moved through more than a single individual. It is our experience that, any contemplated action against the militants or their hideouts if provided to civilians or even local police invariably gets leaked out jeopardizing the entire effort, and the lives of the personnel. This being the operational constraints, should arrest warrants or search warrants be obtained prior to such action?

Operational Setting
How does the Army carry out its operations? Based on broad spectrum information on the movements and activities of the militants in the area, a number of area domination patrols led by Non Commissioned Officers (NCO) and Junior Commissioned officers (JCO) are sent out to seek encounter. Interrogations of captured militants from such encounters are the primary source of information. Information thus obtained regarding the hideouts is effective only for a limited period. Such information will therefore have to be acted upon immediately by dispatching an independent detachment commanded by a NCO or a JCO for the purpose. In these circumstances, who should have the powers to order opening of fire? After the incident who will give evidence to the effect that the fire was opened in self-defence? How does one obtain a search or arrest warrant and from whom?

Militants engage army columns by small arms or rocket fire throw hand grenades or activate IEDs either remotely or by powering it from a distance. Such engagements are carried out from within or close to habitation so as be in a position to have an easy get away and quick merger with the local population, their human shield. When fired upon, the security force detachment returns fire. Being close to habitation, it may injure or kill any civilian who happens to be in the

path of the bullet. When civilian casualty thus occurs, who will come forward to give evidence in favour of the army? In such a situation, how many rounds should a soldier fire? What is the minimum force? Should he wait for orders to fire at all? When search is carried out to trace the culprit, can search or arrest warrants be obtained?

Soldier in a Legal Battle?
The Armed Forces belong to the nation and a soldier is not a party to the dispute. He operates under conditions where the Police forces are politicized and corrupt. The nexus between the politician and the criminals besides the finesse with which evidences and witnesses including postmortem and other reports are manufactured should leave no one in doubt with regard to the facility with which a soldier can be falsely implicated. Considering the endemic delays in our legal procedures, how long will a soldier fight a legal battle? Does he have the financial and other resources to fight a criminal case especially after his arrest or retirement? Should he be harassed just because he did what was right for the country? Why should a soldier’s family suffer with the head of the family running around courts and police stations to defend himself for no fault of his? Why then should a soldier sacrifice his life and clean up a mess created mostly due to political and administrative mismanagement? Will he do that?

While supporting the retention of AFSPA no one is suggesting that human rights violations are not taking place or should be condoned. The Armed Forces’ legal system has time and again proved much faster than the civil courts in providing justice. They should continue to act decisively against the culprits. The Army on its part needs to understand and educate their troops that their role is limited to restricting the violence to an acceptable level and nothing more or less. Incentives for capturing weapons, killing militants etc have over the period proved counterproductive and needs to be stopped. The Government on its part should to be fair, just and honest in its dealings. It also needs to get its act together to find a political solution without dragging its feet endlessly.

AFSPA has been created to accomplish a certain purpose under certain conditions. If it is repealed, and subsequently the Armed Forces made to act in an insurgency situation, the very decision to create the Act and its purpose gets obliterated. The question is, will the Parliament, the Government and the country raise above petty politics and support the Armed Forces to achieve the aim for which it may be requisitioned or deployed? Would the Armed Forces be able to carry out its operations with the impact and freedom which is very necessary to bring down the level of violence in the affected region? Or will the Armed Forces like the police forces of the country be conditioned by the politician bureaucrat combine to make it yet another police force without a back bone? It is time to decide.

The writer, a retired Brigadier, is a veteran of the 1971 Indo – Pak war and an ex Force Commander of the National Security Guard (Black Cat Commandos)

Saturday, October 15, 2011

Let's Save Democracy from Political Parties

Hissar might become a milestone in the Indian Democracy for very peculiar reasons. The by-election on 13 October 2011 has been preceded by unique aggressive campaigning by a non-contesting, non-political civil society group that had no direct stake at the hustings. Anna Hazare had given a call to the electorate to ‘defeat Congress because the Party heading the UPA Government at the Centre is dithering on the Lokpal Bill’. Claiming to be wholly ‘apolitical’ and above party politics, Team Anna has avoided extending support to any of the contestants in the fray. If the Congress loses this election, the Team Anna tactics might emerge as a potent threat to party based polity because political parties have ceased to represent the people and turned into self-serving, domineering gangs.

Whereas there has been unanimity of views all through the 42 years debate on the desirability of having an effective Ombudsman (Lokpal), the political establishment has willy-nilly let eight bills lapse. The ninth attempt is now on in the Lok Sabha. Lots of lip service and no concrete action to have it enacted into a law has exposed the absence of political will in the ruling alliance and the Opposition alike. Whenever there had been a political will, bills were passed in exemplary swiftness without much debate like the MPs’ Salary Bill. This stance of the political parties has led to frustration among the masses. Anna’s call to rouse the people against the Congress should therefore be seen as a public response to political arrogance.

Questions are often asked whether it is democratic for the civil society groups to incite people to vote against a particular party, stage dharnas, fasts and Satyagraha with a view to ‘coercing’ the government to comply with their demands. The counter question, however, is how else will people make the unwilling government act to realise their aspirations and cherished national goals? The underlying problem is that democracy in India has been hijacked by a few families and groups who converted parties into their fiefdoms. Consequently, democracy has slowly dissipated giving way to Oligarchy. Here are the facts that prove this contention.

Dynastic Control. Except perhaps the Bharatiya Janata Party (BJP) and the Leftist parties, almost all other political parties have a Family in control. The party functionaries in such parties are favourites of the ‘Family’ rather than ‘choice’ of the people they are ‘assigned to represent’. Come election season and we find aspiring sycophants jostling, quarrelling and crying over nomination and party tickets for the ensuing polls. Honest individuals rising on their own merit from grass roots are viewed as potential threats as, having strong mass backing, such individuals might not hesitate to question the party high command’s policies which is not acceptable to the all-powerful High Command used to reigning supreme in unquestioned environs as is so often experienced. If criticise you must, it would be okay to find faults with ministers and even the Prime Minister but who dare criticise Madam Supreme and Rahul Gandhi? This style of party-government functioning has destroyed constitutional institutions and reduced even the Prime Minister to a mere titular figure heard while the power centre in New Delhi has shifted from South Block or 7, Race Course Road to 10 Janpath. The absence of Mrs Sonia Gandhi from Delhi during Anna Hazare’s fast left the Indian Government so headless that decision-making process became a mockery bringing the country to a near chaotic situation.

‘Whip’ – an Undemocratic Diktat. It has become a routine practice for the political parties to issue ‘whip’, a mechanism devised to force their respective MPs to vote for or against a particular Bill. In the case of Lok Sabha where there are 543 MPs, issue of whip from the Party bosses of the major parties decides the fate of the Bill. This means there are only 3-4 persons deciding matters crucial in running the nation! Conscience of individual MPs or people’s demands has no standing. Their wisdom, opinion and mandate of the people they represent has no meaning in this farce of a democracy where the boss dictates how thou shalt vote. And what’s more, this voting culture runs against the constitutional grain of our democracy where citizen’s individual opinion is respected and guarded through secret ballot free from all influences. Why not follow the same principle inside the House of the People, the Lok Sabha?

Inner Party Autocracy. Constitutionally, the Chief Ministers of States are required to be elected by the elected MLAs of the majority party or single largest party. In practice, however, these ‘leaders of the legislative party’ are nominated by the party high commands in New Delhi. Likewise, ministers resigning should submit their resignations to the Chief Minister in the States and Prime Minister at the Centre; but a practice has gained currency in which they submit resignations to the Party President. A culture of sycophancy has thus mushroomed that has disoriented the democratic outlook of our polity in which favours and fears looming from the top overrun common public interests in utter disregard to people’s aspirations.

Opportunism killing Ethics: Very tempting manifestoes are publicised by all parties prior to general elections, which are hyped to display the Party’s pro-people dedication and resolve. Like marketing gimmicks, these manifestoes or promised programmes are dumped in trashcans the moment polling is over, never to be talked about for the next five years. Legislatures and governments thus are a consequence of lies and cheating. Parties that contest elections criticising the very philosophy, policies and ethos of opponent parties – often trading abuses and serious allegations on character and deeds of party leadership – show no qualms about making a sudden turnabout from their tirade and forming alliances and governments for mutual comfort and shared exploits. Coalitions formed on the basis of shared common minimum programmes prior to the elections are visible to the electorate who are led to believe or disbelieve in the joint philosophies of such alliances. Therefore, governments formed by pre-poll coalitions have the approval of the electorate. But post-poll coming together of the erstwhile bitter enemies would be plain betrayal of the voters’ mandate. Likewise mid-stream withdrawal from the coalition by member groups or parties would also betray this mandate. Therefore, there is a case for the Election Commission to examine and create a mechanism to fortify people’s mandate by treating post poll making or un-making of alliances as defection. Parties planning a shift in their pre-poll declared positions must seek a fresh mandate for their proposed plans.

High Offices – Prestige and Credibility Compromised. It is constitutionally mandatory that only non-partisan, apolitical personalities of high calibre, integrity and merit should be elected/nominated to hold high constitutional offices like President of India, Governors and other constitutional bodies. Wary of independent opinion and wisdom of meritorious citizens of eminence from ‘apolitical’ background, the political parties have systematically circumvented the constitutional mandate and established a convention whereby persons of negotiable integrity, low calibre and doubtful credentials have held high offices of national prestige including the Office of the President of India, governors and other institutions. Individuals who have been active members of political parties do not become ‘apolitical’ overnight just by resigning their party memberships. Every now and then we find State Governors getting involved in unseemly controversies involving their partisan behaviour, Gujarat and Karnataka being some of the most recent examples. What portrays the country’s highest Office in a pitiable form is that even The President of India cannot say ‘Yes’ or ‘NO’ on matters as simple as mercy petitions that keep lying for his/her consideration for years and decades. And this is when every such case has been thoroughly detailed, considered and passed through comprehensive legal process including review by the Supreme Court – country’s most revered ultimate legal Authority. One of the Presidents was so obsequious that he is on record having said that ‘I would sweep the room if Indira ji ever asked me to do so’. We need to restore the honour and dignity due to nation’s highest office. But how?

Interestingly, India’s Constitution does not specify the necessity of political parties and its founding fathers certainly did not dream of how Democracy would be devoured by Oligarchy centring on family controlled political parties. A question arises: Is it time for India to go for ‘Party less Democracy’?

Saturday, October 01, 2011

What a Farce of Democracy we are!

Every Indian feels proud when someone describes India as the world’s largest democracy! Life of aam admi in India would be largely different if the focal point of our pride were the quality of democracy rather than the quantity of its population. Hubris over the ‘largeness’ of our population which at best goes to highlight the virility of India’s men and fertility of her women is, therefore, somewhat misplaced. What has ‘democracy’ got to do with it? In the absence of ‘quality’, the value of ‘quantity’ is as meaningless as the abundance of water at high seas where the thirsty voyagers do not find a drop to drink. Rather than boasting about our numbers, there could have been more appropriate reasons to trigger mass euphoria, like quality of governance – better health, freedom from starvation, security against terror blasts, efficient service delivery system, people friendly administration and so on. That humble aspiration of the Indian masses, however, has been sadly belied by the politico-bureaucratic nexus that has firmly rooted itself in India’s governing systems.

There are glaring structural flaws in the world’s largest democracy as its ground application manifests in many ways. Ministers and bureaucrats have devised innovative escape routes and nearly always get away with omissions and commissions, which in a truly responsive democracy would be severely dealt with. While there has been widespread public disgust against poor service delivery mechanism in the government offices, our bureaucrats have displayed their skills in working out machinations that would blunt any tool of honesty and efficiency. There are leaders who are still a source of hope for the masses but the number of those who generate mass despair and disgust is increasing shamefully.

Here is a snap test to confirm this. What kind of emotions do names like these evoke in your mind: Buta Singh, Sharad Pawar, Shibu Soren, Ajit Singh, Mulayam Singh, Amar Singh, Lalu Prasad Yadav, Mayawati, Bhajan Lal, Sukh Ram, Karunanidhi, Jai Lalitha, Yeddyurappa…? Much has been already written about those who are already in Tihar Jail and those on their way to it. They have ushered in a peculiar brand of politics unknown in other democracies of the world. Now think of the risks such a scenario poses when India is critically poised to leap into more responsible and powerful leadership roles at global level.

As is amply established by the endless scams involving high profile ministers and their caucus, it is not odd cases of corruption but the entire governance on a decadent path and needs immediate cure. The contamination has spread infecting all limbs and vital organs of the country including judiciary and the armed forces. It is essential to examine the hows and whys of this decay making inroads into our systems. Let’s accept the fundamental principle – leadership is the nation’s fountainhead, and whatever flows from it, good or evil, shall spread all over. Bottom level corruption and callousness cannot survive the thrust of good policies and actions from the top. In fact, right now a couple of Indian states are already setting new standards of good governance and a responsive democracy infusing hope in place of despair.

How far have we come in redeeming dreams of the founding fathers of our Constitution wherein the preamble itself is an expression of the aam admi’s aspirations (“WE, THE PEOPLE OF INDIA, having solemnly resolved … and do hereby adopt, enact and give to ourselves this Constitution”)? Ground realities have belied these aspirations in a manner that within six decades of freedom, India has become a prisoner of her own sins – corruption, caste-based divisive policies, communalism, callous and inefficient administration.

No recruitment in a government job is possible without favourable character verification from the local police station, which must state that the applicant has never been involved in any incriminating activity and has a clean personal record. An adverse comment from the police will mean rejection of the potential Babu, constable or soldier. The law of the land, however, mellows down considerably for our leaders, as their character credentials do not seem to matter even as they would boss over the clean record holders and lead the country. There are 162 MPs in the current Lok Sabha who are facing charges for legal offences, some as serious as robbery, murder and rape. As we watch, more politicians including ministers are being added to this number. Besides the public outcry, look at who all have been crying for action:-

• Law Commission of India in its 166th Report dated 4.2.1999 recommended ‘Forfeiture’ of illegally acquired property of politicians and other public servants. The Commission also drafted and sent ‘The Corrupt Public Servants (Forfeiture of Property) Bill’ to the Law Minister. No action in 12 years!

• Four Chief Election Commissioners have consecutively and persistently recommended enactment of a law to debar and disqualify the corrupt and criminal candidates from seeking election to the Parliament, State Legislatures and other public bodies. The Government and our political parties are all in a synchronous mute mode on this issue.

• The Administrative Reforms Commission constituted by the UPA 1 and chaired by Mr Veerappa Moily who was himself the Law Minister till recently also gave voice to the above two proposals and recommended appropriate enactment besides institutionalisation of an effective Lokpal in its 4th Report titled ‘Ethics in Governance’ in January 2007. Yet, India awaits arrival of ‘ethics in governance.’

• The least that the courts can do is to put the cases of tainted MPs/MLAs on a fast track setting a time limit by which the case must be led to its conclusion. Also, the charge-sheeted members should remain ‘suspended’ until absolved of the charges by the court on the same lines as is done for the government officers. Yet, most of them find more comfort in prolonging the cases than expediting. Why?

• The much discussed Lokpal Bill has been now introduced for the ninth time in the Parliament, though the public demand for the same has been raging for over 42 years. The Government has been driven to act only after Anna Hazare’s fast roused unprecedented public ire over the rising corruption in high places. Yet, the air is thick with suspicions about the political intent on institutionalising an effective Lokpal.

In sharp contrast to historic delays and inaction on bills that could significantly change lives of the Indian masses, Bills seeking salary hikes and perks of MPs by as much as 200% (from Rs 16,000 to Rs 50,000 plus 15 types of perks that add to an MP’s annual package of Rs 45 lakh) are passed unanimously in a day without much debate. And, almost at the same time the Planning Commission adds insult to the injury of the suffering masses by declaring that those spending an amount of Rs 32 and 26 per day in urban and rural areas respectively are no longer poor! Whereas India’s own official statistics peg India’s poverty between 37% (Tendulkar Committee) and 77% (National Commission for Enterprises in Unorganised Sector), there are as many as 645 million Indians living in conditions akin or worse than the 410 million living in the 26 poorest African countries. How do our MPs plan to deliver these millions from misery to a liveable, if not respectable, life style vis-à-vis their own?

India is at a peculiar juncture today. The western world is grappling with economic downturn. Starting from India’s immediate west there is terror, turmoil and anarchy in most of West Asia and North Africa. In such difficult times, India is on a growth path and in strategically advantageous position to assume greater global role to influence decision making in vital international affairs provided she first conquers her inner conflicts like rampant corruption in high places and a callous, unresponsive and unaccountable administration.

World’s ‘largest’ can be its ‘Greatest’ Democracy, if we can change course soon enough. Option is ours – we can either capture or lose the Opportunity, for no opportunity waits for long.